Under the twenty-second section of the Judiciary Act of 1789,
this Court cannot reverse the judgment of he court below for error
in ruling any plea in abatement other than a plea to the
jurisdiction of the Court.
In Pennsylvania it is not usual to make a record of the judgment
in any legal form. But there is no necessity that the courts of the
United States should follow such careless precedents.
Where a suit was brought in which the plaintiff was described as
a citizen of France against the Pennsylvania Railroad Company,
without any averment that the defendants were a corporation under
the laws of Pennsylvania or that the place of business of the
corporation was there or that its corporators, managers, or
directors were citizens of Pennsylvania, the absence of such an
averment was fatal to the jurisdiction of the Court.
The facts in the case are stated in the opinion of the
Court.
Page 57 U. S. 105
MR. JUSTICE GRIER delivered the opinion of the Court.
The caption of this suit and the declaration describe the
plaintiff as a citizen of France, but contain no averment as to the
citizenship of the defendant. Nor does it state whether "The
Pennsylvania Railroad Company" is a corporation or a private
association or the name of an individual. The declaration avers
that the defendants are transporters of emigrants for hire, and
undertook to convey the plaintiff and his wife from Philadelphia to
Pittsburgh, but did it in such a negligent and careless manner that
his wife was frozen to death on her passage. The defendant pleaded
in abatement another action pending for the same cause of action
between the same parties in the District Court of Alleghany County.
To this plea the plaintiff demurred, and the court gave "judgment
upon the demurrer in favor of the defendants." Whereupon the
plaintiff brought this writ of error.
The question raised by the plea in abatement in this case is one
of considerable importance and on which there is some conflict of
opinion and decision, but the judgment of the court below on the
plea is not subject to our revision on a writ of error.
The twenty-second section of the Judiciary Act, which defines
what decrees or judgments in civil actions may be made the subjects
of appeals or writ of error, provides "that there shall be no
reversal on such writ of error, for error in ruling any plea in
abatement other than a plea to the jurisdiction of the Court."
The question of jurisdiction has not been made the subject of
plea or exception, nor is it necessary where it is patent on the
face of the record. The judgment of the court, so far as the record
is concerned, does not distinctly show whether the court quashed
the writ on the plea in abatement or dismissed the suit for want of
jurisdiction, as it might well have done. In Pennsylvania, it is
not usual to make a record of the judgment in legal form. The word
"judgment" for the party in whose favor it is, being the usual
minute made by the clerk, from which a formal record of judgment
may be made, but seldom or ever is made. It stands as a symbol to
represent what the judgment ought to be, and therefore can never be
erroneous. But there is no necessity that the courts of the United
States should follow such careless precedents.
On a demurrer, the court will look to the first error in
pleading, and if the declaration does not show that the court has
jurisdiction of the parties, it may dismiss the cause on that
ground. In this case, the declaration states the plaintiff to be a
citizen of France, but gives no character as to the citizenship of
the defendant. The name is most probably not intended to
Page 57 U. S. 106
designate an individual; if not, the record does not state that
it is a corporation incorporated by the laws of Pennsylvania or
having its place of business there, or that its corporators,
managers, or directors are citizens of Pennsylvania, nor can the
want of such averment be supplied by inference from the name. It is
true, the act of Congress describes the jurisdiction of the Court
to be "where an alien is a party," without describing the character
of the other party, and the pleader may have been led into the
error by looking no farther. But the Constitution, which is the
superior law, defines the jurisdiction to be "between citizens of a
state, and foreign states, citizens, or subjects," and, although it
has been decided,
Mason v.
Blaireau, 2 Cranch 264, that the courts of the
United States will entertain jurisdiction where all the parties are
aliens if none of them objects to it, yet it does not appear in
this case that the defendant is an alien.
It follows, therefore, that whatever construction be put on this
record, the judgment of the court below must be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Western
District of Pennsylvania, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this
Court that the judgment of the said circuit court in this cause be
and the same is hereby affirmed with costs.